General terms and conditions

Article 1 – Definitions

1.1      

The term “Contractor” in these General Terms and Conditions shall be taken to mean: Ganzeboom Transmissies BV and/ or Ganzeboom Nuland- ‘s-Hertogenbosch BV.

1.2      

The term “client” in these General Terms and Conditions shall be taken to mean: anylegal entity or person concluding an agreement with the Contractor for the supply of products and the provision of works and services, including overhaul of (automatic) transmissions in the broadest sense of the world.

1.3      

The term “products” in these General Terms and Conditions shall be taken to mean: all products marketed by the Contractor and used by the Contractor for the provision of the works and services.

1.4      

The term “works and services” in these General Terms and Conditions shall be taken to mean: all works and services, by whatever name, but in particular the works in respect of the overhaul of (automatic) transmission and related works to objects of the Client and of persons on whose behalf the Client acts as Contractor, intermediary or authorized representative.

1.5       

The term “Agreement” in these General Terms and Conditions shall be taken to mean: the Agreement between the Contractor and the Client.

Article 2 – Application in general

2.1      

These terms and conditions shall apply to all offers from, and agreements with, the Contractor insofar as not otherwise provided, expressly and in writing, by the Contractor.

2.2      

In addition to these conditions, the general terms and conditions of the Dutch Transmission Specialists Association (VNTS) shall apply. In the event of any conflict, these present terms and conditions shall prevail over the VNTS terms and conditions.

2.3     

They shall apply in particular to all agreements concluded between the Contractor and the Client, relating to works and services provided by the Contractor to the Client.

Article 3 – Offers, orders and agreements

3.1      

All the Contractor’s offers are always without obligation, unless the Contractor has made an offer, explicity and in writing, specifying a deadline for acceptance.

3.2      

The Contractor is not under any obligation until it expressly accepted an order and it reserves the right to refuse an order without stating reasons.

3.3      

Oral commitments only bind the Contractor after the contractor confirmed these oral commitments expressly and in writing.

3.4      

An offer from the Contractor can be accepted in writing only.

3.5      

Orders resulting from a non-binding offer from the Contractor may be sent to the Contractor by mail, email or fax and may aslo be communicated orally, Orders sent by email or fax or communicated orally, however, shall be confirmed in writing by mail, within a period of seven days.

Article 4 – Prices

4.1      

The prices stated by the Contractor are based on the circumstances at the time of the offer or the order confirmation.

4.2      

The Contractor has the right to charge its Clients for any taxes, import duties or other goverment levies raised or levied at a later date as well as the consequences of exchange rate fluctuations, without the Client being entitled to cancel the order on this basis.

4.3      

The prices stated by the Contractor shall always be increased by the applicable turnover tax and similar levies.

Article 5 – Supply and provision of services and works

5.1      

Specified delivery times will, to the extent possible, be adhered to by the Contractor. Specified delivery times, however, will never be deemed to be strict deadlines unless expressly agreed otherwise in writing.  In the event of late delivery, the Contractor shall be given written notice of default.

5.2      

In the event that an order can only be delivered in instalments, the remainder will be noted for later delivery. The Client will be notified about this. In such an event, the Client has the right to cancel the order for the undeliverd part, provided that it informs the Contractor within a period of eight days after the notice from the Contractor. The Client shall not have any claim to damages.

5.3      

Delivery is ex-works, unless otherwise agreed.

5.4      

In the event that the Client refuses to accept the item at the agreed time or when the Client as a result of circumstances attributable to the Client is unable to take delivery of the item, the Client is deemed to be in default by operation of law and the additional costs, including the storage costs at the Contractor’s local rate applicable shall be for the acount of the Client.

Article 6 – Payment

6.1      

Payment shall be made in cash upon delivery of the car or the parts or further services provided. However, if a cash payment has not been made, the Contractor may decide unilaterally to grant a maximum period of 30 days after the invoice date.

6.2      

If the parties have waived cash payment and the Parties have not expressly agreed in writing on a Payment date, a payment term of 30 days of the invoice date shall apply. Thereupon, the Client shall pay statutory (commercial) interest on an annual basis, whereby part of any month shall be deemed to be a full month.

6.3      

If the Client, after the expiration of the first payment term as referred to in paragraph 2, fails to fulfil the payment obligation, in whole or in part, the Contractor will send the Client a written demand for payment of the outstanding amount and the statutory interest thereon within a second period of 14 days, with notification of the extrajudicial collection costs in accordance with the graduated scale for extrajudicial collection costs. If the Client, within the second period fails to fulfil the payment obligation, in whole or in part, the extrajudicial collection costs shall be due as well as the statutory interest on the extrajudicial costs as from the due date therof.

Article 7 – Risk transfer

7.1      

The risk in the item shall be for the Client as from the moment of delivery, as referred to in article 5, paragraph 3.

7.2      

The method of transport will be determined by the Contractor. The transport is always at the risk of the Client, regardless of whether or not the transport is carried out carriage paid and regardless of whether the transport takes place from or to the Contractor. Insurance can take place at the request and for the account of the Client.

Article 8 – Replacements materials

8.1      

Replacement materials or items will only provided to the Client when specifically requested in the repair order. Otherwise these materials will become the property of the Contractor wihtout the Client having any claim to compensation in this respect.

Article 9 Right of retention

9.1                 

In case of repair, the Contractor may exercise the right of retention to the item, if and for as long as:

• The Client fails to pay for the work performed on the item, in whole or in part;
• The Client fails to pay for work performed earlier by the Contractor on the same item, in whole or in part;
• The Client fails to settle other claims (including claims for compensation, interest and costs) which arise from the contractual relationship with the Contractor, in whole or in part.

Article 10 – Retention of Title

10.1

The ownership of the items supplied by the Contractorn will be transferred to the Client only when the Client has complied in full with its obligations vis-à-vis the Contractor, airsing from the agreement concluded between them, of any nature whatsoever. If the Client unexpectedly fails to fulfil any its obligations or fails to fulfil its obligations in time, the Contractor has the right to claim ownership of all items or part of the goods which the Contractor supplied to the Client in the context of the relevant transaction.

The Contractor has this right also in respect of the items that through onward supply as referred to above are in the hands of third parties (not being consumers), on the understanding that the Contractor will restrict itself to reclaiming items for which the Contractor did not receive payment (in full). In view of repossession of items as referred to above, the Client shall be credited by the Contractor for the value which – at the discretion of the Contractor – must be attributed to those items, less any costs incurred for the repossession, without prejudice to the right of the Contractor to compensation of any resulting damage incurred by the Contractor, now and in the future. The Client does not under any circumstance have the right to pledge unpaid items to provide security for a third party or otherwise to encumber these items with any right for the benefit of a third party.

10.2     

In addition to paragraph 1 of this article, the Contractor reserves the right of pledge to the products the ownership of which has been transferred to the Client, as security for all existing and future claims of the Contractor, on whatever grounds.

10.3     

If the Client fails to fulfil its payments obligations vis-à-vis the Contractor and there are good grounds that it will fail to fulfil its obligations, the Contractor has the right to repossess the products supplied subject to retention of title, without any notice of default or judicial intervention being required.

10.4     

The Client shall grant the Contractor or a third party designated by the Contractor access to the locations where the products supplied subject to retention of title are to be found.

Article 11 – Guarantee

11.1     

The Contractor guarantees the proper execution the proper execution of the contracts it accepted or outsourced and the materials used for the execution of these contract, for a period of twelve months, to be calculated from the invoice date.

11.2     

The guarantee includes the proper execution at a later date of the contracts not, or not properly, executed.

11.3    

No guarantee will be given on emergency repairs ordered.

11.4     

The claims under guarantee will expire, if:

1. the Client fails to notify the Contractor as soon as possible after the defect has been found;
2. the Contractor is not given the opportunity to remedy the defects at a later date;
3. third parties without prior knowledge or permission from the Contractor have performed work related to the work performed by the Contractor for which a claim under the guarantee is made
4. vehicles have been equipped with chip tuning or have more power than originally and if vehicles have defects that may affect the operation of the transmission.

11.5     

The provisions referred to below under number 2 and 3 shall not apply if repair abroad is necessary. In that case, reimbursement of the repair costs takes place on the basis of the price level that applies in the contractor’s company.

11.6     

Liability of the Contractor, referred to in the preceding paragraphs, amounts to a maximum of the amount paid or due by the Client to the Contractor for the relevant work and deliveries. The liability of the Contractor ends as soon as repairs or modifications have been or made, without its permission, to the parts processed by the Contractor.

11.7     

Guarantee is only provided to the Client and not to successive successors in title.

11.8     

The Contractor does not assume any further or other guarantees or liability, including for any damage resulting from improper work or defects in provided parts. The guarantee in question is expressly limited to the items sold and does not include compensation of damage to persons and/or items, whether or not from third parties, due to breakage or failure of the transmission or parts thereof or compensation of any other costs whatsoever that may arise there from for the Client.

11.9     

The execution of the guarantee will be suspended in the event of failure by the Client to meet payment terms.

Article 12 – Liability

12.1     

Without prejudice to the guarantee provisions, the Contractor excludes any further liability vis-à-vis the Client, for any damage, hoewever caused, including all direct and indirect damge, such as a consequential loss or trading loss, with the exception of liability for damage caused by the intentional act or gross negligence of the Contractor or its employees and/or auxiliary persons.

12.2     

Damage, including consequential loss in respect of (complete) vehicles and components offered for repair, shall be for the account of the Client, at least to the extent that this is not covered by the insurance of the contractor.

Article 13 – Force majeure

13.1     

In case of force majeure, the Contractor has the right, at its option and without judicial intervention to either suspend execution of the agreement for a maximum period of six months, or to terminate the agreement, in whole or in part, without being liable for any damages.

13.2     

Force majeure also includes: all curcumstances outside the control of the contractor, even when they were forseseeable at the time the agreement was concluded, which prevent performance of the agreement permanently or temporarily, This includes, inter alia: war or similar situations, riot, sabotage, boycott, strike, occupation, blockade, damage or failure of installations of the countractor and/or its suppliers, illness in the workforce of the Contractor’s company, transport problems, failure in telecommunications, government measures, natural disasters, fire or explosion.

13.3     

The above also applies if the aforementione curcumstances should occur in respect of the ompanies of factories, importers and other traders the Contractor buys the products from or in general buys the products from.

Article 14 – Termination

14.1     

The agreement is deemed to be terminated without judicial intervention and without any notice of default being required, at the time the Client is declared bankrupt, applies for a provisional suspension of payments or debt management within the meaning of the Debt Management (Natural Persons) Act is granted or the Client loses power of disposition of its assets or parts thereof through attachment, a guardianship order or otherwise, unless the receiver or the administrator acknowledges the obligations arising from this agreement as estate debts.

Article 15 – Governing law and choice of forum

15.1     

Any agreements between the Client and the Contractor, to which these General Terms and conditions apply, shall be governed by Neterlands law.

15.2     

Any disputes, relating to, arising from or in connection with the offers, deliveries, arrangements or agreements made by the Contractor, if these disputes are within the jurisdiction of the District Court, shall be settled by the District Court competent in the place of business of the Contractor.